Opinion
Civil Action No. 3:03-CV-1556-N.
April 23, 2004
ORDER
Before the Court is Defendants' motion to dismiss for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Because the Court finds that Defendant Shrink Wrap International, Inc.'s ("SWI") web site is passive, the Court grants the motion to dismiss.
Plaintiff Poly-America, L.P. ("P-A") manufactures polyethylene products, including shrink wrap film. It maintains a web site accessible through either www.polyamerica.com orwww.poly-america.com. SWI, a Michigan corporation, is a competitor of P-A, and claims to be the nation's largest shrink wrap wholesale distributor. SWI does business under the trade name "Protect-A-Boat." Apparently a large market for shrink wrap film is for covers that protect recreational boats from weather. SWI maintains a web site accessible through the domain namewww.protectaboat.com.
This dispute arose when SWI obtained the domain namewww.polyamerica.net, and pointed that domain name at its protectaboat web site, a practice known as "cybersquatting." P-A brought suit against SWI and three individual defendants, who presumably have some relationship to SWI, in state district court, alleging various state trademark and tort claims. Defendants removed to this Court and have now moved to dismiss.
Although the Court finds for SWI on its motion to dismiss, the Court does not in any way condone or approve SWI's conduct.
The Court's consideration of the Defendants' motion is made more difficult by the absence of a supporting affidavit. Defendants' motion includes numerous factual representations regarding, for example, the individual defendants that are unsupported in the record by any evidence. Defendants included an affidavit with their reply brief, but it deals primarily with the character of the web site and communications between Mr. Mallory and Defendant Bickerstaff. However, because the plaintiff bears the burden of establishing a prima facie case of jurisdiction, this deficiency is not fatal to Defendants' motion to dismiss.
The legal standards for exercise of personal jurisdiction are well-known:
When, as here, the district court did not conduct an evidentiary hearing on defendant's motion to dismiss, the party seeking to assert jurisdiction is required only to present sufficient facts to make out a prima facie case supporting jurisdiction. [ Alpine View Co. v. Atlas Copco A.B., 205 F.3d 208, 214 (5th Cir. 2000)] (citing cases). The court shall accept as true that party's uncontroverted allegations (so long as the allegations are not merely conclusory) and resolve all factual conflicts in favor of the party seeking to invoke the court's jurisdiction. Id. (citing cases).
In a diversity action, a federal court may exercise personal jurisdiction over a defendant only to the extent permitted by the applicable law of the forum state. See Fed.R.Civ.P. 4(e)(1), (h)(1), and (k)(1). In this case, it is well-established that the Texas long-arm statute authorizes the exercise of personal jurisdiction to the full extent allowed by the Due Process Clause of the Fourteenth Amendment. See TEX. CIV. PRAC. REM. CODE ANN. § 17.042 (West 1997); Alpine View 205 F.3d at 214; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990).
The Due Process Clause of the Fourteenth Amendment protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful "contacts, ties, or relations." Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). Exercising personal jurisdiction over a nonresident defendant is consistent with constitutional due process when "(1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing 'minimum contacts' with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend 'traditional notions of fair play and substantial justice.'" Mink v. AAAA Development LLC, 190 F.3d 333, 336 (5th Cir. 1999) (quoting International Shoe Co., 326 U.S. at 316 (1945)). "'Minimum contacts' can be established either through contacts sufficient to assert specific jurisdiction, or contacts sufficient to assert general jurisdiction." Id.; Alpine View, 205 F.3d at 215. When a nonresident defendant has "purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities," the defendant's contacts are sufficient to support the exercise of specific jurisdiction over that defendant. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks omitted). General jurisdiction may be asserted when a defendant's contacts with the forum state are substantial and "continuous and systematic" but unrelated to the instant cause of action. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984).Cent. Freight Lines, Inc. v. APA Transp. Corp., 322 F.3d 376, 380-81 (5th Cir. 2003).
Initially, P-A makes no allegations regarding any of the individual defendants. Thus, the record before the Court shows no contacts by Defendants Bickerstaff, Horn or Eliason with the State of Texas. Accordingly, the Court grants their motion to dismiss for lack of personal jurisdiction.
P-A's argument for jurisdiction over SWI relies on SWI's web site. In Mink v. AAAA Dev. LLC, 190 F.3d 333 (5th Cir. 1999), the Court adopted a standard for personal jurisdiction from Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997):
Courts addressing the issue of whether personal jurisdiction can be constitutionally exercised over a defendant look to the "nature and quality of commercial activity that an entity conducts over the Internet." Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). The Zippo decision categorized Internet use into a spectrum of three areas. At the one end of the spectrum, there are situations where a defendant clearly does business over the Internet by entering into contracts with residents of other states which "involve the knowing and repeated transmission of computer files over the Internet. . . ." Zippo, 952 F. Supp. at 1124. In this situation, personal jurisdiction is proper. See id. (citing CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996)). At the other end of the spectrum, there are situations where a defendant merely establishes a passive website that does nothing more than advertise on the Internet. With passive websites, personal jurisdiction is not appropriate. See id. (citing Bensusan Restaurant Corp., v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997)). In the middle of the spectrum, there are situations where a defendant has a website that allows a user to exchange information with a host computer. In this middle ground, "the exercise of jurisdiction is determined by the level of interactivity and commercial nature of the exchange of information that occurs on the Website." Id. (citing Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996)). We find that the reasoning of Zippo is persuasive and adopt it in this Circuit.
Applying these principles to this case, we conclude that AAAA's website is insufficient to subject it to personal jurisdiction. Essentially, AAAA maintains a website that posts information about its products and services. While the website provides users with a printable mail-in order form, AAAA's toll-free telephone number, a mailing address and an electronic mail ("e-mail") address, orders are not taken through AAAA's website. This does not classify the website as anything more than passive advertisement which is not grounds for the exercise of personal jurisdiction. See Zippo, 952 F. Supp. at 1124.
This case does not fall into the spectrum of cases where a defendant clearly conducted business over the Internet nor does it fall into the middle spectrum of interactivity where the defendant and users exchange information through the Internet. There was no evidence that AAAA conducted business over the Internet by engaging in business transactions with forum residents or by entering into contracts over the Internet. See CompuServe v. Patterson, 89 F.3d at 1264-67 (6th Cir. 1996); Zippo, 952 F. Supp. at 1125-26.
We note that AAAA's website provides an e-mail address that permits consumers to interact with the company. There is no evidence, however, that the website allows AAAA to do anything but reply to e-mail initiated by website visitors. In addition, AAAA's website lacks other forms of interactivity cited by courts as factors to consider in determining questions of personal jurisdiction. For example, AAAA's website does not allow consumers to order or purchase products and services on-line. See Stomp, Inc. v. NeatO, LLC, SA CV 99-669, 1999 WL 635460, *3 n. 7 (C.D. Cal. Aug.6, 1999) (describing consumers' ability to purchase and pay for products on-line). In fact, potential customers are instructed by the website to remit any completed order forms by regular mail or fax.
In this case, the presence of an electronic mail access, a printable order form, and a toll-free phone number on a website, without more, is insufficient to establish personal jurisdiction. Absent a defendant doing business over the Internet or sufficient interactivity with residents of the forum state, we cannot conclude that personal jurisdiction is appropriate.
The record contains the printed screens from the website, which contain the line, "For more information, e-mail sales@upfrontsoft.com or call toll free (888) 286-6286." The email address is underlined and printed in a different color ink, possibly indicating an e-mail link, as opposed to simply an e-mail address. The parties have not focused the Court upon the possibility that the e-mail address includes a link feature, and the Court is unable to verify this feature without going outside the existing record. We note, however, that the mere existence of an e-mail link, without more, would not change this Court's conclusion that there is no personal jurisdiction.
Mink, 190 F.3d at 336-37 n. 1.
The parties here disagree regarding whether SWI's web site is passive or interactive. The printouts of the site in the record appear to indicate that it has a link that permits sending e-mail, but is not otherwise interactive. It does not include any forms for ordering products, and apparently does not include a price list. There is no evidence in the record that SWI conducts business over the internet, or that it has anything more that sporadic contacts with the State of Texas unrelated to the dispute before the Court. The web site, as it exists today, includes an e-mail link (a "MAILTO" URL) of the type mentioned by Mink in footnote 1, and the Court finds on the record in front of it that this link is the only interactive aspect of SWI's web site. Accordingly, given the holding of Mink in footnote 1, the Court holds that SWI's web site is passive enough that it does not support a finding of personal jurisdiction over SWI. SWI's motion to dismiss for lack of personal jurisdiction is therefore granted.